February 18, 2021, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Kempton v Struke Estate, 2020 BCSC 2094 (CanLII)
Date of Decision: December 31, 2020
Heard Before: The Honourable Mr. Justice Crerar
On August 5, 2015 Alan Kempton was driving a tractor-trailer northwest of Prince George, B.C. 19-year-old William Struke was driving a 2008 Chevrolet Aveo owned by his mother, Loretta Mae Struke. Mr. Struke had been drinking with friends the evening before and into the morning and was likely fatigued. The car crossed the centre line into the oncoming lane into the path of Mr. Kempton’s truck. Mr. Kempton braked and the tractor-trailer locked in a long skid. Mr. Struke did not attempt to brake. Immediately before impact, Mr. Kempton saw that Mr. Struke’s head was slumped over the steering wheel, where he was likely asleep.
Mr. Kempton watched as the car disappeared under the front of his truck. The police report described the car being crushed like an accordion. In accident scene photographs, but for the tires, it is barely recognizable as a vehicle. Mr. Struke’s body was crushed and torn apart. He was killed instantly.
The impact threw Mr. Kempton to the floor of his truck cab, which was partly buckled trapping him inside, wedged on the floor. He could see up close the wreckage of Mr. Struke’s car through the floor level ankle window. Mr. Kempton was eventually rescued by emergency responders who forced the door open. Mr. Kempton tried desperately to escape himself.
Although he did not suffer serious physical injury in the accident recurring nightmares of the accident Mr. Kempton has only slept for two or three hours at a stretch in the five years since. He dreams of being trapped in the cab and jerks violently in his sleep. He claws the bedroom wall, and his toenails gouge his legs, as he tries to kick free.
Miraculously his diagnosed injuries were limited to bruising on his chest and a friction burn on his calf. He was discharged from the hospital later that day. When he went to retrieve his personal items from the truck a few days later he was shocked and disturbed to see Mr. Struke’s crumpled car beside his truck where he imagined Mr. Struke’s bodily remains in the car.
This image has haunted him almost daily for five years. He suffers flashbacks of the accident. Mr. Kempton claims PTSD. Evidence presented at trial documents his memory lapses, his weight gain due to inactivity and personality changes, and how the personality changes also affected his relationships in particular with his wife. It also documents his history of self-medication with alcohol. He claims episodes of PTSD are triggered by the depiction of car crashes or violence in the news or on tv shows.
As time progressed the episodes became so severe that Mr. Kempton stopped participating in the activities he once enjoyed including driving. He stopped leaving the house, quit his hobbies (carpentry) and stopped working on his house. He lives in Northern BC and has limited access to counselling services and psychological help. The combination of factors has led to him living in a self-described semi-hermit state.
Mr. Kempton eventually sought compensation for the ongoing PTSD and various physical injuries that he claimed had either been caused or worsened by the accident. He presented a comprehensive volume of medical evidence supporting his claims.
Mr. Justice Crerar determined that on the balance of probabilities Mr. Kempton established that the accident caused his PTSD and that the PTSD impacted every aspect of his life. His medical evidence was supported by witness testimony from his wife, his medical experts and from himself. Mr. Crerar noted that Mr. Kempton’s testimony was presented in a distracted and wandering manner supporting his claims.
Mr. Crerar also dismissed the argument made by the defence that Mr. Kempton failed to mitigate his condition by not having obtained consistent treatment for his now severe PTSD. Mr. Kempton’s attorney supported this move as it appropriately represented the debilitating impact of PTSD on the victim’s life, and also that it reflected the consensus opinion that due to the permanent and severe nature of the condition seeking earlier treatment was unlikely to improve the PTSD in this case.
Mr. Crerar cited Stapley v. Hejslet 2006, BCCA 34 when deciding on the $225,000 for non-pecuniary damages. The findings in the case also involved the lifelong and irremediable alteration of a plaintiff’s life due to depression and PTSD. Mr. Kempton was also awarded damages for past and present loss of earnings, loss of opportunity, future costs of care, housekeeping, and special damages and a management fee.
In total Mr. Kempton was awarded $1,594,469.45 in damages.